Chandra Shekhar Joshi vs State Of Uttarakhand And Others

Sudhanshu Dhulia, J.

The petitioner is an Assistant Agriculture Officer Group - I in Agriculture Department (Development Branch) at Nainital. The petitioner is aggrieved by his transfer order dated 10.06.2018, by which he has been transferred from District Nainital to District Champawat. The transfer is being made in pursuance of the Uttarakhand Public Servant Annual Transfer Act, 2017. However, pursuant to the Uttarakhand Public Servant Annual Transfer Act, 2017, a Government Order dated 25.05.2018 has been passed by the Chief Secretary of the State to the effect that under the present difficulty which is being faced by the State Government, transfers will be made only against the 10% of the existing vacancies.

Learned counsel for the petitioner has submitted that as per the own calculation of the Department, there exists 26 available vacancies against which ordinarily transfers could have been made and therefore in pursuance of the Government Order dated 25.05.2018, transfer could have been made only against 3 posts as 10% of 26 posts would be 2.6 and round off figure would be 3 vacancies. According to the petitioner, though his name figures at S.No.10, however, he has been transferred by the impugned order.

A specific averment has been made by the petitioner to this effect in paragraph no.16 of the writ petition which reads as under:-

"That it reveals from the aforesaid chart that the respondent department has calculated the number of vacancies available for transfer as per the Section-8 of the Annual Transfer Act, 2017 and after calculation the department found 26 available posts vacant for annual transfer but the respondents are failed in considering the G.O. dated 25/05/2018 in its true letter and spirit because if the 10% of available vacant post are calculated out of 26 available vacant post, the number of available vacant post has to be 2.6 (3 in lump sum) but the department arbitrarily issued transfer order whereby the petitioner has been transferred in spite of the fact that the petitioner's name is at serial no.10 and the respondent have transferred the petitioner by considering serial no.10 under 10% of 26 available vacant post which is illegal and arbitrary."

There is no rebuttal by the State to the aforesaid paragraph in their counter affidavit.

The State has wrongly calculated as to what should be the 10%. The 10% is being taken by the respondents as 10% of the total strength whereas it should be 10% of the total existing vacancies on which transfers have to be made.

Apparently, the transfer order dated 10.06.2018 seems to be in violation of the Uttarakhand Public Servant Annual Transfer Act, 2017 as well as Government Order dated 25.05.2018.

In view thereof, the writ petition is allowed. The transfer order dated 10.06.2018 so far it relates to the present petitioner is hereby set aside. All the same the authority will always be at liberty to consider the case of the petitioner for transfer in the next session.